Oral Argument Approaching for Tenth Circuit Appeal in Challenge to “Waters of the US” Rule
The U.S. Chamber, along with the National Federation of Independent Business, Portland Cement Association, State Chamber of Oklahoma, and Tulsa Regional Chamber, filed an appeal in their challenge of a federal regulation attempting to broaden the definition of “Waters of the United States” (WOTUS Rule). Promulgated by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, the WOTUS Rule dramatically expands the scope of the agencies’ authority under the Clean Water Act (CWA).
In its opening brief, the coalition urged the Tenth Circuit to reverse the U.S. District Court for the Northern District of Oklahoma’s decision to dismiss the case sua sponte, a decision based, at least in part, on a questionable and non-binding decision of the Sixth Circuit that is contrary to the text of the CWA. The brief explains that the Tenth Circuit has an independent obligation to determine its jurisdiction. Further, to the extent the district court deferred to the Sixth Circuit, it erred because the CWA’s text and the established default rule under the Administrative Procedure Act clearly indicate that the district court has original jurisdiction over the WOTUS rule, as none of the CWA’s limited exceptions providing for original jurisdiction in the courts of appeals apply here. Finally, the brief argues that the agencies’ policy-based reading of the CWA finds no support in Supreme Court or Tenth Circuit precedent, much less in the plain text of the CWA.
Michael H. Park, William S. Consovoy, and J. Michael Connolly of Consovoy McCarthy Park PLLC served as co-counsel for the U.S. Chamber, et al. in this case, as well as James P. McCann, John J. Carwile, and Mary E. Kindelt of McDonald, McCann, Metcalf & Carwile, LLP.
This case has not been decided yet.